The Michigan Supreme Court heard oral argument in Hogan v. Wayne County (No. 167262) on whether dismissals under the Michigan Prison Litigation Reform Act (PLRA) for failure to exhaust administrative remedies should be entered with or without prejudice, and whether Krista Anson was a prisoner under the PLRA when the complaint was filed.

Michael Desi, who identified himself as counsel for the plaintiff-appellants, told the court he "would ask that this court find and hold the same interpret Michigan's PLRA to also be, a dismissal without prejudice if the dismissal is based on a failure to exhaust." Desi said federal courts have "universally and uniformly interpreted the federal PLRA as requiring a dismissal for failing to exhaust administrative remedies as a dismissal without prejudice," and argued Michigan should follow that approach so plaintiffs may refile after satisfying procedural requirements. He also said the complaint at issue was filed about 1:30 p.m. and that "miss Anson was later picked up and booked into the jail at about 09:30 or 09:45," contending she was not a prisoner at the time of filing.

Mary Massaron, arguing for the Wayne County defendants, urged a different reading. "The Michigan Prison Litigation Reform Act was intended to limit the number of lawsuits a prisoner can file," Massaron said, and she argued the 2007 Michigan statute and the state court rules support dismissals that operate as adjudications on the merits unless the court expressly provides otherwise. Massaron criticized plaintiffs for not pressing Anson's prisoner status in the trial court, noting the countys booking record had been filed early in the case and that plaintiffs only raised the issue belatedly on appeal. She argued that, given that procedural posture and what she described as repeated litigation naming Anson, a dismissal with prejudice was appropriate here.

The justices probed factual and procedural questions. They asked whether Ansons death had been disclosed earlier and whether substitution of her estate complied with court-rule timing requirements. Desi said he filed a motion to substitute the estate the week before and provided letters of authority from probate appointing a personal representative; he acknowledged he should have filed sooner and said defendants had notice in the federal action and had completed discovery for Anson. Massaron countered that plaintiffs had an obligation to investigate and preserve the prisoner-status issue below and that the record contains only Wayne Countys booking record showing a 9:45 booking time.

Both sides acknowledged that dismissal for failure to exhaust is required, but they disagreed on consequences and remedies. Desi said failure to exhaust cannot be cured by amendment but can be corrected by refiling and that Michigan rules and tolling could allow refiling without prejudice. Massaron said the statutes language and Michigan's default dismissal rules justify a with-prejudice approach, particularly in cases she characterized as repeat litigation or harassment.

The court concluded oral argument and submitted the case for decision.